The fear of Ebola is spreading far faster than the disease. That said, instinctually, employers are tempted to ask employees pointed questions about health-related issues in order to dispel fears that they could be infected. It is important to stay cognizant of the fact that these questions may run afoul of the Americans with Disabilities Act (ADA). While only a handful of people have been infected with Ebola in the United States, plenty of employers have been sued for violations of the ADA.
This post is not intended to belittle the value of an employer action plan – every company should consider having one for serious situations such as Ebola. Rather, we urge employers to thoughtfully craft a plan to address any threat, while staying in compliance with the ADA and other legislation.
The Equal Employment Opportunity Committee (EEOC) handed down helpful commentary in its 2009 Guidance on Pandemic Preparedness. The guide says that employers are free to require employees to report if/when they intend to travel to any outbreak locations identified by the Center for Disease Control (CDC). That said, after the employee returns, mandating medical clearance before the employee can come back to work is a little trickier. As of now, if the employee is showing no signs of the infection, they are not considered a “direct threat” and cannot be required to seek medical clearance before returning to work.
As this situation develops, the CDC might provide further guidance. These updates could impact your action plan, so it would be prudent to discuss any potential updates with your legal advisor.
Author’s contact info:
Meredith S. Campbell
Co-Chair, Employment and Labor Group, Shulman Rogers
email@example.com | T 301.255.0550 | F301.230.2891
Member MD & DC Bar